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RICHMOND COUNTY BAR ASSOCIATION
COMMITTEE ON PROFESSIONAL ETHICS
OPINION # 14
MEMORANDUM
DATE: February 8, 1995
TO: WILLIAM FREW, JR.
FROM: WAYNE M. OZZI
SUBJECT: DIVORCE MEDIATION
There is no per se rule prohibiting a lawyer from acting as a mediator. The Code contemplates this situation and provides at EC 5-20:
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“A lawyer is often asked to serve as an impartial arbitrator or mediator in matters which involve present or former clients. The lawyer may serve in either capacity after disclosing such present or former relationships. A lawyer who has undertaken to act as an impartial arbitrator or mediator should not thereafter represent in the dispute any of the parties involved.
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If one member of a firm is disqualified from representing a client, so too are his partners and associates (N.Y.S. Bar Association, Ethics Op. #258). Here, the attorney/mediator makes clear that he will not represent either party after mediation is complete.
However, other considerations compel close scrutiny. The problem with the divorce mediation information being disseminated is the manner in which it is advertised and communicated to attorneys, and/or the public.
The Nassau County Bar Association (NCBA) addressed the issue squarely in its Ethics Opinion #82-8, when it said that it is improper for an attorney to claim in an advertisement that divorce mediation services are superior than separate representation by counsel.
The letter sent by the mediator/attorney to his colleagues states that “in mediation, the parties save attorneys fees, reduce hostilities, and protect the children from much of the ugliness of the traditional divorce process . This is the equivalent of stating that mediation is superior than traditional representation by an attorney. Also, it constitutes a claim which cannot be measured or verified (DR 2-101 (B); NCBA Op. #82-8).
The mediator/attorney also dispatches a pamphlet, prepared by the Academy of Family Mediators, but adopted as his own, describing the mediation process. Several statements contained therein are extremely objectionable.
A statement directed at counsel asks, “when you find yourself in the role of a consulting attorney to a client in mediation, ‘what is your job? ”. It continues by offering this advice: “Your role is not to take every legal step available to strengthen your client s position.” The mediator ought not to put himself in a position of suggesting to a lawyer as to how to best represent his or her client. The lawyer is in the best position to determine what his “job” is, under all the circumstances, not the mediator. “The obligation of a lawyer to exercise professional judgment solely on behalf of the client requires disregarding the desires of others that might impair the lawyer s free judgment” (EC 5-20).
The brochure continues by stating that “if the lawyers keep filing motions and sending hostile letters back and forth, that chance (to work out an agreement) may be destroyed”. This is substantially similar to the claims made in the advertisement in NCBA Op. #82-8 which claimed that hiring “separate lawyers .... is costly .. .. (and) often only complicates matters”. These claims were found to be “false, deceptive, and blatantly misleading”. It attempts to dissuade people from exercising their rights and further attempts to interfere with the lawyer s exercise of his or her professional judgment.
Another questionable claim is the advice not to “grab your sword and go into battle without first having satisfied yourself that mediation has truly failed”. This is little more than an emotional appeal disapproved in NCBA Op. #82-8, in which the advertisement advised that “you might even end up fighting in court and you certainly don t want that”. The statement at issue here fails to educate the public or provide information about the most appropriate counsel (DR 2—101 (D); NCBA Op. #82—8).
The brochure also makes the following claims:
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“A lot of emotion can get centered around what are essentially trivial issues. If the parties stick with mediation, they almost certainly will work out these final details, but sometimes one of them get so angry at this point that he goes back to his lawyer with instructions to take action to force his spouse to give in
“By performing your job well, you enable your client to mediate the divorce successfully and achieve a fair settlement without subjecting the family to the expense and destructiveness of litigation”.
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Again, these statements are emotional appeals; they tend to be misleading, and make claims which cannot be measured or verified.
On the whole, there are several representations which cast a poor reflection on the legal profession and the legal process in general, in violation of DR 2-101(A). The profession is portrayed as obstructionist and unnecessarily expensive. Thus, it is totally improper because it does not meet the standards for advertising prescribed in EC 2-10 and DR 2—101 (NCBA Op. #82—8).
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